Two Theories of Constitutional Rights

Today, I wish to discuss two theories of constitutional rights and what they mean for the extraterritorial application of the Constitution. There are other theories, some of which are examined in Professor Gerald Neuman’s excellent article “Whose Constitution?,” 100 Yale L.J. 909 (January 1991).

This post, however, focuses on two such theories: the social compact theory and the mutuality theory.

Social compact theory views the Constitution as a compact or contract between those who drafted it. Under this theory, based on the writings of political philosophers like Locke, Hobbes, and Rousseau, the Constitution is a compact which only applies to those members of society who have entered the compact. Under this view, the Constitution only applies to those who are members of the compact - namely citizens of the United States and those who have chosen to reside among them. This theory will be familiar to readers who have followed posts on United States v. Verdugo-Urquidez, in which Chief Justice Rehnquist relied heavily on this theory to justify his findings that aliens have no claim to the protections of the Fourth Amendment regarding searches of their property abroad.

Mutuality theory focuses on the idea that if the United States Government wishes to impose its will on individuals, it is obliged to provide the concommitment protections located in the document. Under this theory, if the U.S. wishes to bind individuals to its criminal laws, it would be required to provide all the protections that are designed to limit those laws, including, for example, the Fourth, Fifth, and Sixth Amendments. This theory animated Justice Brennan’s dissent in Verdugo-Urquidez.

Personally, I prefer mutuality theory. It only seems right that if we expect individuals to abide by our laws, we should extend them the protections that are meant to cabin government power. While it is true that aliens, particularly those living abroad, are not part of our political community, the question arises as to why they should be bound by our laws if that is the case. Under a strict reading of social compact theory, such governments were not entitled to extend their laws to cover aliens, as they were not a part of the compact.

Furthermore, there are numerous problems with social compact theory that would need to be addressed. Under a strict reading of the theory, even aliens present in the United States, but not seeking to become citizens, would not receive protections under the Constitution. Thus, the police would be entitled to conduct warrantless searches of tourists, or those here on student visas. They could deny due process to such individuals, as well as to foreign corporations who only have limited ties to the United States. Tourists and those on nonimmigrant visas could be subjected to cruel and unusual punishment, or tried for crimes absent the protections of either a grand or petit jury.

None of this is consistent with the way courts have interpreted the Constitution’s protections since the very founding. James Madison, speaking out against the Alien and Sedition Acts stated “it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection.” This is a powerful argument against social compact theory and in favor of mutuality.

The Court has only appeared to rely on the social compact theory to limit constitutional rights on two occasions. One was Verdugo-Urquidez. The other was Dred Scott v. Sanford, in which the Court held that slaves were not parties to the compact and thus could be denied constitutional rights. Given this checkered pedigree, it is not surprising that it has not come up more often.

One final note on the social compact theory - it’s not entirely clear to me that it is being violated in most extensions of the Bill of Rights to others. Because the Bill of Rights largely creates negative rights, that is, restraints on the government, the application of these rights effects U.S. citizens, who are subjects of the compact. The Fourth Amendment places limits on U.S. citizens, when it commands that searches conducted by the Government must be reasonable. The Fifth and Sixth Amendments limit what the Government may do without following certain procedures. Even the First and Second Amendment prohibit the Government from infringing on rights. Thus, the operation of the rights in question are to limit government actors, all of whom are members of the compact. Thus, even adopting the social compact theory, it is not at all clear that aliens would not be entitled to the protections, properly conceived.

Interesting student note on due process and asylum seekers

For those interested in the contested application of the Constitution to aliens seeking admittance and asylum, I recommend reading a note recently published in the Fordham Law Review. “A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisting the Entry Fiction after Boumediene,” 87 Fordham L. Rev. 289, by Zainab A. Cheema.

The note examines the continuing vitality of the “entry fiction,” the idea that even though an alien is physically present in the United States, they remain outside the border for legal purposes if they have not been granted admission or parole, in the wake of the Supreme Court’s decision in Boumediene. It argues that the impractical and anomalous test adopted by the Court in Boumediene would counsel in favor of greater procedural protections to asylum seekers who have passed a credible fear interview. Specifically, the note calls for bond hearings for these asylum seekers after a presumptively reasonable period of time.

It is a quick and interesting read and I commend it to you.

Are we asking the right question?

When discussing whether the Constitution follows the flag, people tend to conceptualize the question as whether or not the Constitution applies overseas.  But is that the proper question?  While the Supreme Court may have initially conceptualized the question that way in In re Ross, where it held that the Constitution cannot have effect in another country, in every other case since Ross, the question has been formulated more in the frame of "Who has the right to enforce the Constitution overseas?"

The first time this formulation appeared was in the United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).  There, the Court wrote that "Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens."  299 U.S. at 318.  This formulation indicates that, if a U.S. citizen is involved, the Constitution would apply.

The Court echoed this formulation in Reid v. Covert, where the question was whether the Sixth Amendment applied to American citizens overseas, accompanying U.S. military forces.  Relying on the citizenship of the military spouses, the Court said yes.  And this formulation also played a role in United States v. Verdugo-Urquidez, which focused less on whether the Fourth Amendment applied in Mexico, and more on whether Verdugo-Urquidez had the right to claim the protections of the Fourth Amendment.  Indistinquishing Reid, the Court noted that it dealt with citizens, rather than aliens.  Furthermore, the implication of the Verdugo-Urquidez majority's holding is that, had Verdugo-Urquidez possessed substantial connections, the Fourth Amendment would have applied.

Thus, it appears that the better way to conceptualize the extraterritorial application of the Constitution is to start with a presumption that the Constitution does apply anywhere that the U.S. Government acts, but that there is a limited group of people who have standing to enforce its provisions, if those acts take place outside the United States.  I'll dive into this more in future posts.

 

The Obviously Extraterritorial Constitution

As noted in earlier posts, there are open questions about which provisions of the Constitution apply abroad.  However, there are some provisions that quite clearly do - most notably the "Define and Punish Clause" in Article I, Section 8.

This provision provides that Congress shall have the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations[.]"  By its definition, this power applies outside the territorial boundaries of the United States, at least in part.  Congress has used this power, almost since it first met, to punish piracy, among other international crimes.

Today, this clause is used to combat hijacking of aircraft and is the basis for the Maritime Drug Law Enforcement Act, which is the major basis for Coast Guard actions interdicting drugs making their way to the United States, so long as the vessels are captured on the high seas.

Another clause that, on its face, calls for extraterritorial application, is somewhat related - the juries clause of Article III, Section 2.  This clause holds that "The Trial of all Crimes, except in Cases of Inpeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

This clause plainly contemplates that crimes over which the United States has jurisdiction may well be committed outside the boundaries of the States themselves.  At the time of the Founding, there was very little in the way of territory over which the U.S. exercised sovereign control that was not within the boundaries of a state.  The Northwest Territories were the prime example.  However, historical evidence demonstrates that this language applied to those crimes committed on the high seas as well.  Pirates were subject to the jurisdiction of the first district court into which they found themselves brought.

Although not demonstrated by the text itself, it seems self evident that the limits in Article I, Section 9 would apply to the extraterritorial exercises of jurisdiction allowed by Article I, Section 8.  Thus, it seems to me unremarkable to say that the power to "Define and Punish piracies and Felonies committed on the high Seas" is constrained by the Constitution's prohibitions on Bills of Attainder and ex post facto laws.  In other words, the drug runner who was caught on the high seas on October 5, 2006 (the day before the MDLEA went into effect) would have a valid constitutional defense to charges brought under Act.  Likewise, a bill which targeted an individual for punishment by name, even though that individual was living abroad, would be able to successfully argue that the bill contravened Article I, Section 9.

Given this, it seems that the Court's claim in Johnson v. Eisentrager, that the application of the Constitution abroad was so novel that it would have excited debate, does not withstand scrutiny.  Certainly, the idea that enemy aliens captured and held abroad could claim the protection of the Constitution, which was the core question in Eisentrager, might have raised eyebrows in Philadelphia.  But the idea that the Constitution empowered Congress to act outside the United States was self-evident.  And just as self evident, I argue, is the fact that the limits on Congress's power would travel abroad as well.

Recent scholarship, which I will examine in depth in a future blog post, appears to bear this out.  See Professor Nathan Chapman's excellent article, "Due Process Abroad," for more on this historical practice.

What do we mean by "extraterritorial" application?

Today's post will ask a theoretical question - what exactly do we mean when we say a provision of the Constitution applies extraterritorially?  In some cases, like Verdugo-Urquidez, it seems fairly obvious - the search took place outside the United States.  As the Court held, the violation occurs once the search or seizure is accomplished.  If that happens outside the U.S., then we are asking if the Fourth Amendment applies extraterritorially.

But what about the Fifth Amendment's Due Process Clause, or the Self-Incrimination Clause?  The Court was just as clear in Verdugo-Urquidez that a violation of the Self-Incrimination Clause only occurs at trial, when the coerced testimony is introduced.  However, that description does not appear to track the Court's jurisprudence surrounding the Self-Incrimination Clause.  As Professor Mark Godsey persuasively argued in a 2003 law review article, the Supreme Court in 1986's Colorado v. Connelly, shifted the focus of the Fifth Amendment's protections from introduction at trial to the conduct of police during the pretrial interrogation.  479 U.S. 157 (1986).  Given this, if a suspect is interrogated in Romania, may he challenge his confession as involuntary once he's returned to the United States for trial?

The Due Process Clause can be even trickier.  One can argue that it does not even come into play until one enters court.  If this is the case, then almost every application of the Due Process Clause of the Fifth Amendment will not be extraterritorial, since there are very few U.S. courts which sit outside the United States.  (Two notable exceptions are courts martial and military commissions). 

We see this interaction in cases dealing with personal jurisdiction.  The Court has a long history of cases in which it examines whether the Due Process Clause is offended when a foreign company is haled into a state court to face tort liability for actions in a state.  There, the Court asks whether the foreign corporation has "minimum contacts" with the forum to justify applying local laws to its actions.  Interestingly, the Court has never once asked whether such a foreign corporation has "substantial connections" to the United States such that it can claim the protections of the Due Process Clause in the first instance.

There are two potential explanations for this seeming inconsistency: 1) the Court assumes that the Due Process Clause applies because we are in U.S. courts, thus there is no question of extraterritoriality; or 2) the Due Process Clause is a constraint on Government power, a la Black's opinion in Reid, and thus it serves to limit what the Government may do regardless of who is on the other side.  Sadly, the Court has never addressed the question head on.  But some lower courts have.  In those cases, they seem to indicate that the former explanation is the correct one.  They have held that the mere presence of the corporation through their lawyer in Court provides them the connection necessary to assert the Due Process Clause's protections.

It is a fairly unremarkable claim that the Due Process Clause applies in U.S. courts, regardless of who is seeking to enforce it.  Given that, it appears that courts are of the opinion, without directly saying so, that when a foreign corporation challenges the application of a state's long arm statute under the Due Process Clause, they are not asking the Court to apply the Clause outside the United States.

These questions are more than academic.  Professor Godsey concludes that under Supreme Court precedent, if the Connelly view of confessions controls, aliens interrogated abroad would not be able to claim the protections of the Fifth Amendment, contra to the Court's statement in Verdugo-Urquidez.  As for other applications of Due Process, it would help if the Court would take the next opportunity to clarify on what basis foreign corporations claim the protections of Due Process is.  For now, there appears to be a bit of tension between the Court's personal jurisdiction cases, which require only "minimum contacts" and its extraterritorial cases, which require "substantial connections."  Answering the question of what we mean by "extraterritorial" may help resolve this tension.

Further Reading:

Mark A. Godsey, "The New Frontier of Constitutional Confession Law -- The International Arena: Exploring the Admissibility of Confessions Taken By U.S. Investigators Abroad," 91 Geo. L. J. 851 (April 2003).

First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding, Ltd. et al, 703 F.3d 742 (5th Cir. 2012).